HASELTON, P. J.
Plaintiff appeals a supplemental judgment denying her attorney fees, challenging the trial court’s rejection of her exceptions, ORS 36.425(6), to the arbitrator’s denial of her fee petition. The trial court sustained the arbitrator’s determination that plaintiff had no entitlement to attorney fees under ORS 20.080 and further held that, because plaintiff had not invoked ORS 20.082 as a possible ground for fee entitlement before the arbitrator, that ground was not cognizable before the trial court on its review of plaintiffs exceptions. We agree with the trial court’s reasoning and, accordingly, affirm the supplemental judgment denying plaintiff attorney fees.
The underlying facts are undisputed. Before she died, plaintiffs mother held an insurance policy with defendant for which she paid by automatic payments from a joint checking account that she shared with plaintiff. Plaintiff informed defendant of her mother’s death, asked to cancel the policy, and requested that defendant cease withdrawing money from the account. Defendant continued to automatically withdraw money from the account. Plaintiffs claims against defendant arise from her demand that defendant return the money taken from the bank account.
In her complaint, plaintiff pleaded claims of replevin, conversion, trespass to chattels, money had and received, and intentional infliction of emotional distress. Additionally, plaintiff separately claimed entitlement to attorney fees under each theory. The trial court directed the case to mandatory court-annexed arbitration.
See
ORS 36.400 - 36.425. The arbitrator decided in favor of plaintiff on her claim for money had and received and for defendant on all other claims. Plaintiff subsequently submitted a statement to the arbitrator seeking an award of attorney fees under ORS 20.080 (2001).
Defendant opposed plaintiffs
request for attorney fees, arguing that plaintiff was not entitled to fees under ORS 20.080 because a claim for money had and received is not predicated on “an injury or wrong to [plaintiffs] person or property.” Plaintiff remonstrated that ORS 20.080 does apply to claims for money had and received because, in her view, ORS 20.080 broadly applies to all legal causes of action and “taking and keeping someone’s property is an injury or wrong to that property.” Plaintiff did not assert any alternative basis of entitlement to attorney fees. The arbitrator determined that plaintiff was not entitled to attorney fees under ORS 20.080. The arbitrator explained:
“I find that the case of
Mitchell v. City of St. Paul,
178 Or App 312, 36 P3d 513 (2001)[,1 is the controlling case regarding entitlement to fees. That case holds, with limited exceptions, that ORS 20.080 will only entitle a prevailing plaintiff to attorney’s fees in tort cases. The exceptions mentioned in the
Mitchell
case included actions for statutory violations that are described as ‘tort-like.’
“Plaintiff alleged a number of torts but prevailed only on the claim for money had and received. I do not believe that the theory of money had and received is either a statutory cause of action or a tort. Accordingly, I do not find that ORS 20.080 provides an entitlement to attorney’s fees.”
Pursuant to ORS 36.425(6),
plaintiff filed exceptions to the arbitrator’s denial of fees in the trial court and
submitted a revised statement of attorney fees, again contending that ORS 20.080 applied to her claim for money had and received. Additionally — and for the first time — plaintiff raised ORS 20.082
as an alternative basis for an award of attorney fees. The trial court denied plaintiff attorney fees under ORS 20.080 for the same reason as the arbitrator. In addition, the trial court refused to consider plaintiff s claim for fees under ORS 20.082 because plaintiff had failed to claim entitlement to fees under that statute before the arbitrator.
On appeal, plaintiff assigns error to the trial court’s denial of her request for attorney fees under ORS 20.080, arguing that ORS 20.080 is not limited to tort claims or, alternatively, that a claim for money had and received sounds in tort. Plaintiff also assigns error to the trial court’s denial of her alternative request for fees under ORS 20.082,
arguing that, under ORS 36.425(6), the trial court was required to consider and determine her purported entitlement to fees under ORS 20.082.
Defendant responds that the trial court did not err in denying plaintiff s request for attorney fees under ORS 20.080 because money had and received is an implied contract theory and ORS 20.080
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HASELTON, P. J.
Plaintiff appeals a supplemental judgment denying her attorney fees, challenging the trial court’s rejection of her exceptions, ORS 36.425(6), to the arbitrator’s denial of her fee petition. The trial court sustained the arbitrator’s determination that plaintiff had no entitlement to attorney fees under ORS 20.080 and further held that, because plaintiff had not invoked ORS 20.082 as a possible ground for fee entitlement before the arbitrator, that ground was not cognizable before the trial court on its review of plaintiffs exceptions. We agree with the trial court’s reasoning and, accordingly, affirm the supplemental judgment denying plaintiff attorney fees.
The underlying facts are undisputed. Before she died, plaintiffs mother held an insurance policy with defendant for which she paid by automatic payments from a joint checking account that she shared with plaintiff. Plaintiff informed defendant of her mother’s death, asked to cancel the policy, and requested that defendant cease withdrawing money from the account. Defendant continued to automatically withdraw money from the account. Plaintiffs claims against defendant arise from her demand that defendant return the money taken from the bank account.
In her complaint, plaintiff pleaded claims of replevin, conversion, trespass to chattels, money had and received, and intentional infliction of emotional distress. Additionally, plaintiff separately claimed entitlement to attorney fees under each theory. The trial court directed the case to mandatory court-annexed arbitration.
See
ORS 36.400 - 36.425. The arbitrator decided in favor of plaintiff on her claim for money had and received and for defendant on all other claims. Plaintiff subsequently submitted a statement to the arbitrator seeking an award of attorney fees under ORS 20.080 (2001).
Defendant opposed plaintiffs
request for attorney fees, arguing that plaintiff was not entitled to fees under ORS 20.080 because a claim for money had and received is not predicated on “an injury or wrong to [plaintiffs] person or property.” Plaintiff remonstrated that ORS 20.080 does apply to claims for money had and received because, in her view, ORS 20.080 broadly applies to all legal causes of action and “taking and keeping someone’s property is an injury or wrong to that property.” Plaintiff did not assert any alternative basis of entitlement to attorney fees. The arbitrator determined that plaintiff was not entitled to attorney fees under ORS 20.080. The arbitrator explained:
“I find that the case of
Mitchell v. City of St. Paul,
178 Or App 312, 36 P3d 513 (2001)[,1 is the controlling case regarding entitlement to fees. That case holds, with limited exceptions, that ORS 20.080 will only entitle a prevailing plaintiff to attorney’s fees in tort cases. The exceptions mentioned in the
Mitchell
case included actions for statutory violations that are described as ‘tort-like.’
“Plaintiff alleged a number of torts but prevailed only on the claim for money had and received. I do not believe that the theory of money had and received is either a statutory cause of action or a tort. Accordingly, I do not find that ORS 20.080 provides an entitlement to attorney’s fees.”
Pursuant to ORS 36.425(6),
plaintiff filed exceptions to the arbitrator’s denial of fees in the trial court and
submitted a revised statement of attorney fees, again contending that ORS 20.080 applied to her claim for money had and received. Additionally — and for the first time — plaintiff raised ORS 20.082
as an alternative basis for an award of attorney fees. The trial court denied plaintiff attorney fees under ORS 20.080 for the same reason as the arbitrator. In addition, the trial court refused to consider plaintiff s claim for fees under ORS 20.082 because plaintiff had failed to claim entitlement to fees under that statute before the arbitrator.
On appeal, plaintiff assigns error to the trial court’s denial of her request for attorney fees under ORS 20.080, arguing that ORS 20.080 is not limited to tort claims or, alternatively, that a claim for money had and received sounds in tort. Plaintiff also assigns error to the trial court’s denial of her alternative request for fees under ORS 20.082,
arguing that, under ORS 36.425(6), the trial court was required to consider and determine her purported entitlement to fees under ORS 20.082.
Defendant responds that the trial court did not err in denying plaintiff s request for attorney fees under ORS 20.080 because money had and received is an implied contract theory and ORS 20.080(3) expressly excludes “any action based in contract” as a basis for fee entitlement under ORS 20.080. Defendant also maintains that the trial court did not err in declining to review plaintiffs entitlement to fees under ORS 20.082 because plaintiff failed to plead that basis for fees to the arbitrator and the trial court’s scope of review of plaintiffs exceptions pursuant to ORS 36.425(6) is limited to the legal grounds on which the arbitrator considered and denied attorney fees.
We review a trial court’s allowance or denial of attorney fees for legal error.
Rymer v. Zwingli,
240 Or App 687, 691, 247 P3d 1246 (2011). With respect to plaintiffs first assignment of error, the question reduces to whether fee entitlement for having prevailed on plaintiffs “money had and received” claim arises under ORS 20.080, as opposed to ORS 20.082. The answer inexorably follows from the following premises: (a) ORS 20.082 governs entitlement to attorney fees for “claim[s] based on contract,” and ORS 20.080(3) concomitantly expressly excludes actions “based on contract” from the scope of entitlement under ORS 20.080; (b) under ORS 20.082(1), “contract” for purposes of ORS 20.082 includes express or implied contracts; (c) “[t]he term ‘implied contract’ can refer either to a contract implied-in-fact or to one implied-in-law[,]”
Staley v. Taylor,
165 Or App 256, 262, 994 P2d 1220 (2000); (d) consistently with
Staley,
“money had and received” is based on a contract implied in law,
Briggs v. Lamvik,
242 Or App 132, 143, 255 P3d 518 (2011); consequently, (e) alleged fee entitlement based on having prevailed on a claim for “money had and received” cannot be governed by ORS 20.080, but is, instead, governed by ORS 20.082. We thus conclude that ORS 20.080 does not provide a
basis for plaintiff to recover attorney fees, and we affirm the trial court’s determination in that matter.
Turning to plaintiffs second assignment of error, the issue is whether plaintiff could successfully invoke ORS 20.082 for the first time before the trial court by way of litigating her exception to the arbitrator’s denial of the fees claimed under ORS 20.080. We conclude, consistently with the unambiguous text of ORS 36.425(6), that the trial court correctly rejected plaintiffs exception.
As noted, ORS 36.425(6) provides, in pertinent part:
“Within seven days after the filing of a decision and award under subsection (1) of this section, a party may file with the court and serve on the other parties to the arbitration written exceptions directed solely to the award or denial of attorney fees or costs. Exceptions under this subsection may be directed to the legal grounds for an award or denial of attorney fees or costs, or to the amount of the award.”
Thus, the statute creates a precise mechanism by which parties who do not opt for a trial
de novo
pursuant to ORS 36.425(2)(a)
may nevertheless take exception to the “legal grounds” on which an arbitrator allowed — or, as here, denied — attorney fees. Very significantly, subsection (6) is not phrased generically as authorizing exceptions “to an award or denial of attorney fees”; rather, by its express terms, its focus is specific and rigorous: “[E]xceptions under this subsection may be directed to
the legal grounds for
an award or denial of attorney fees.” (Emphasis added.) Accordingly, if the arbitrator committed no legal error in (as here)
denying a party’s request for attorney fees, the exception pursuant to ORS 36.425(6) must be rejected.
See also Foust v. American Standard Ins. Co.,
189 Or App 125, 133-34, 74 P3d 1111 (2003) (“Subsection (6) does not provide for trial
de novo.
* * * Rather, * * * review is limited to determining whether the arbitrator correctly applied the law in awarding or denying attorney fees.” (Citation omitted.)).
Here, the arbitrator “correctly applied the law in * * * denying attorney fees.”
Id.
at 134. The only basis for fee entitlement that plaintiff invoked before the arbitrator was ORS 20.080, and the arbitrator denied fees on the ground that ORS 20.080 was inapposite.
That
was the “legal ground” for fee denial — and that “legal ground” was patently correct. It is immaterial that plaintiff could have — and perhaps should have — invoked ORS 20.082, at least alternatively, before the arbitrator. What is material for purposes of ORS 36.425(6) is that plaintiff never invoked ORS 20.082 before the arbitrator and that the only ground for fee entitlement that she did invoke, ORS 20.080, was inapposite. Given those circumstances, the arbitrator’s “legal ground” for denial of attorney fees was unexceptional, and the trial court correctly sustained that denial.
Affirmed.